On reflection, I think so.  It was obvious from the beginning that Barack Obama was going to pick a woman to replace David Souter, which of course meant a liberal woman.  While there were rumblings that he might name a non-judge such as Michigan Governor Jennifer Granholm or Homeland Security Secretary (and former Arizona governor) Janet Napolitano to the vacancy, the smart betting seemed to have it going to one of three people:  Solicitor General Elena Kagan (the former dean of Harvard Law School), Judge Sonia Sotomayor, and Judge Diane Wood.  Of the three, the most talked-about leading up to the nomination was Judge Wood, which made perfect sense to me since she’s the one who worried me the most; I don’t really want any of these folks on the Court, but given the likely options, I was hoping vaguely for Solicitor General Kagan, who seems to me to be the most reasonable of them.

As for Judge Sotomayor, she’s not only hard-left, she’s also a comparative lightweight (not that she’s not a very bright woman, just that she’s not in the same ballpark as, say, Diane Wood, or Antonin Scalia) and so when she was announced as President Obama’s pick, I was more than a little non-plussed; sure, she’s qualified, but hardly the best-qualified nominee, even off that very short list.  Her record at the 2nd Circuit Court is uninspiring, to say the least, as Ed Morrissey notes:

The current court, including Souter, has already heard oral arguments on [Ricci v. Destefano]. They should rule on this before the end of their current session, which will come next month. If they overturn Sotomayor, that will emphasize both her incorrect decision on the merits as well as a lack of intellectual curiosity, an issue raised by her colleague Judge Cabranes.

A reversal on Ricci will raise the issue of the several reversals Sotomayor has received over her 11 years on the 2nd Circuit (the Washington Times says she bats .400 at the Supreme Court—not a confidence builder). The Supreme Court has reversed her at least four times already, at least one of those a unanimous 8-0 reversal, which makes her look either more liberal than anyone currently on the court or less competent. One of the times the court upheld Sotomayor, the majority scolded her for misrepresenting the statute in her opinion.

So why did President Obama choose her?  Part of it was no doubt the identity-politics aspect of naming the first Hispanic to the court, along with the third woman.  Part of it may well have been that he thought she was a safer nominee.  It will almost certainly take Democratic defections to sustain a filibuster, which isn’t at all likely under normal conditions, but there’s been the suggestion that Judge Wood’s recent record on national-security issues was a red flag; the recent refusal by the Senate to support the closure of the Guantanamo detention center suggests that if Judge Wood’s views on national security worried the Blue Dog Democrats enough, a successful filibuster might be possible.  Judge Sotomayor might lack the sheer intellectual firepower of Judge Wood, but she’ll be an equally reliable liberal vote and the identity politics works in her favor.  Since the president will have a reasonable shot at filling three slots on the court over the course of this term, it appears he decided to take a safer and more politically appealing course for his first shot.

Now, this isn’t to say that Judge Sotomayor has no baggage; she does, and particularly the following remarks:

All of the legal defense funds out there, they’re looking for people with Court of Appeals experience. Because it is—Court of Appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don’t “make law,” I know. [audience laughter] Okay, I know. I know. I’m not promoting it, and I’m not advocating it. I’m, you know. [audience laughter] Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. Its interpretation, its application.

That line came from a 2005 panel discussion at Duke; I think Michael Eden is right to say from this that “Sotomayor clearly acknowledges her view, even as she recognizes how radical and wrong it is, and therefore says the pro forma things to cover [herself].”  The other much-quoted passage of her thought will likely be this one, from a 2001 speech at Berkeley:

I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that—it’s an aspiration because it denies the fact that we are by our experiences making different choices than others. . . .

Our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am also not so sure that I agree with the statement. First, as Professor [Martha] Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.

From this, one can see why some Republicans are talking filibuster; but barring the unforeseen, it won’t work.  They wouldn’t keep Maine in the fold on filibustering Judge Sotomayor, and these sorts of issues aren’t going to cause mass Senate defections.  Aside from discovering that she’s five years in arrears on her taxes, or something like that, Judge Sotomayor will be Justice Sotomayor as soon as the appointed time arrives.

And for that, I think the GOP should be grateful; if they did somehow manage to block her nomination, I believe they’d end up regretting it.  As a matter of pure Realpolitik, Barack Obama is going to put a liberal in that seat and that’s all there is to it; the only question is whatkind of liberal he’ll put there.  Given that, I think the party and its leaders need to listen very carefully to Jonathan Turley’s complaints about the nomination (video below):

You know, we are not selecting a house pet. We’re selecting a Supreme Court justice and as an academic I have a certain bias. And that is does she have the intellectual throw weight to make a difference on the court? And I have to tell you the optics are better than the opinions in this case. I’ve read a couple of dozen of her opinions. They don’t speak well to her being a nominee on the Supreme Court. . . . I think that a lot of academics are a little bit disappointed. I am in the sense that Diane Wood, Harold Koh, were not the ultimate people to prevail. These are people that are blazingly brilliant. They would have brought to the court intellects that would frame in the conceptual way. . . .

I’ve read roughly about 30 of these opinions. She has a much larger library of opinions. But they are notable in one thing and that it’s a lack of depth. There’s nothing particularly profound in her past decisions. She’s been a judge a long time. That’s opposed to people like Judge Wood on the 7th Circuit and she was viewed as a real intellectual powerhouse. You really can’t read the opinions of this nominee and say, “Oh yeah, this person is a natural choice for the Supreme Court.” . . . I have to say that liberals obviously are enjoying rightfully a certain short term elation with this twofer, a woman and a Latina, being put on the court. But in terms of long term satisfaction she does not naturally suggest that she is going to be the equal of Scalia and I think that was the model for liberals. They wanted someone who would shape the intellectual foundations of the court. Her past opinions do not suggest that she is like that. . . .

Ultimately questions about empathy and temperament are less important than whether this person is going to have a profound impact to help shape the court and this nominee really doesn’t have a history to suggest that.

Dr. Turley is unhappy because in his estimation, Justice Sotomayor is unlikely to be anything but a vote on the Court.  She’ll be a reliable leftist vote, to be sure, but she will probably have little effect on the votes of her colleagues—a point which is supported by how unpersuasive they’ve tended to find her reasoning as it’s come to them in her opinions from the 2nd Circuit.  President Obama had the chance to nominate a liberal who would not only be a vote, but would influence the overall direction of the court; as far as we can tell at this point (which is, admittedly, never as far as we think it is), Sonia Sotomayor will not be that kind of justice.  For that, Republicans should be thankful—and should hope that somehow the political climate changes enough between now and the next Supreme Court vacancy that the president will have to nominate someone more moderate.

And in that hope, this nomination may well be useful.  The concerns about Judge Sotomayor won’t be enough to create Democratic opposition, but they may help the GOP make its case to the electorate, as Ed Morrissey argues:

The Republicans have an opportunity with Sotomayor that doesn’t involve knocking her off the court. They have an opportunity to use the hearings to show Sotomayor as a routine appellate jurist with a spotty record who got elevated to this position as an act of political hackery by a President who couldn’t care less about his responsibilities to find the best and brightest for the job. Like many of Obama’s other appointments, it demonstrates a lack of executive talent and intellectual curiosity on his part. This appointment makes an argument for more Republicans in the Senate after the midterms, if for no other reason than to force Obama to start putting a little effort in making his nominations.

Taken all in all, as a conservative, I don’t like the pick, but I think it could and should have been a lot worse.  Given that elections have consequences, and wipeouts have big consequences, that’s practically the best-case scenario.